“Occupy” Movement’s Citywide Strike and Port Shutdown in Oakland

CNN reported on Wednesday, November 2, 2011:

Demonstrators in Oakland, California, appeared to carry out a successful strike of downtown businesses Wednesday, as most merchants and retailers shuttered their doors during a largely peaceful protest.

CNN reported that “the General Assembly of Occupy Oakland … voted 1,484-46 last week to call the general strike,” involving students walking out of school and workers refusing to work. The “Occupy” movement demonstrators were supported by local unions and the protesters converged on downtown Oakland during the day and then moved to Oakland’s port in the evening.

On Wednesday, November 2, 2011:

• “Several banks closed their doors … as hundreds of anti-Wall Street protesters took to the streets in Oakland in … a mostly peaceful demonstration.”
• Some “Occupy” movement “demonstrators … had placed yellow tape across the bank’s doors and refused to budge.”
• According to one source, “the protests escalate[d] from a peaceful demonstration, to a powerful show of frustration from police, occupiers, and Oakland residents. There were fires, there was tear gas, and there were people who got very badly hurt.”
• Hundreds of teachers — an estimated 16% of teachers in the Oakland Unified School District — failed to show up for work, while the District sounded a note supportive of the “Occupy” movement, its spokesman saying, “We do support some of the ideals of Occupy Oakland, particularly the concept that services have been dramatically underfunded,” and “We wanted to allow teachers who were fighting for public education and children to have their voice.”
• According to the Occupy Oakland website, “by late afternoon the crowds had swelled to over 10,000,” and over 20,000 marched to the port and shut it down completely. “Port officials confirmed that the workforce was sent home.”

Two Labor Law Issues Raised By Employee Participation in an “Occupy” Movement Strike

If employers find their operations significantly affected by the absence of protesting employees, they may want to know what they can lawfully do in response.

First, can they discipline or fire an employee for the absence?

Second, if the employer has a union contract and it appears the union is supporting the “Occupy” movement strike, may the employer take legal action on the basis that this violates a no-strike clause?

The questions may seem novel, since the current “Occupy” movement street activism is a recent development. But they are not unique, and relevant principles can be found in several Supreme Court decisions interpreting the National Labor Relations Act.

As always, the following is a quick bit of general information, not specific legal advice. The actions discussed can involve significant legal risk, and employers, unions, and employees should discuss these issues with their own qualified labor counsel.

Can Employees be Disciplined or Fired For Absences Due to an “Occupy” Movement Strike?

Many people are surprised to learn that the right to strike protected by the National Labor Relations Act (“NLRA”) is not limited to employees represented by unions, but is extended to all employees covered by the NLRA, which includes most non-union private-sector employees.

Under the NLRA, employees have the right not only to “form, join, or assist labor organizations” and “to bargain collectively through representatives of their own choosing” — rights involving unions — but also “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Law Protecting Nonunion Employees’ Right to Strike

In NLRB v. Washington Aluminum Co.,370 U.S. 9 (1962) “concerted activities for … other mutual aid and protection” was interpreted by the Supreme Court to include leaving work without permission to protest cold working temperatures in a machine shop. The Court held that because this strike-like withholding of services was protected by the NLRA, the employer had no right to terminate the employment of those who had walked out.

At the time, the employees had no union representation (although a union election had been held, the results were dependent on resolution of the validity of the terminations).

In NLRB v. City Disposal Systems Inc., 465 U.S. 822 (1984), the Supreme Court stated: “The term ‘concerted activity’ is not defined in the Act but it clearly enough embraces the activities of employees who have joined together in order to achieve common goals” even if the immediate action is undertaken by only a single employee.

In City Disposal, a single employee refused to drive a truck he believed unsafe, but in doing so asserted a right under a collective bargaining agreement. It was this connection to the agreement that gave his action the necessary “concerted” and “mutual aid” character.

So how would these principles apply to employees who walked out or didn’t show up for work in order to participate in an “Occupy” movement strike?

The activity might be “concerted” if pursuant to some agreement amongst the employees, but would it be “for … other mutual aid and protection”?

In the above cases, the activity was directed towards some aspect of working terms and conditions. With the “Occupy” protests, the focus would not be on complaining about or seeking to change anything about the employees’ particular employer or employment, but on more general political action (unless, perhaps, the employer was a major bank or investment firm!)

For this reason, employees choosing to join an “Occupy” movement strike might find their conduct not protected by the NLRA, leaving them vulnerable to discipline or discharge. Of course, employers wishing to accommodate such employee political activity (such as the Oakland School District, per the above quotes) could ignore it or require that employees use vacation or other paid time off or unpaid leave for it.

What If Employee’s Union Sanctions Participation in an “Occupy” Movement Strike?

Suppose a union representing an employer’s employees called a general strike in support of the “Occupy” movement? What could an employer lawfully do in response?

With an entire workforce, or large part of it, participating in a strike, the employer might be less concerned with disciplining or discharging the strikers than with attempting to force them back to work. Armed with a no-strike clause, a typical provision of a collective bargaining agreement, the employer might seek to have a court issue an injunction ordering the employees to cease their strike.

But this is no ordinary strike. It’s not about wages, benefits, work rules, or other terms and conditions of employment. It’s not about how the employer treated one or more employees. It’s about … politics and economics.

One must reach back into history over three decades to find it, but something fairly similar happened in 1980, and the issue reached the Supreme Court in 1982. The protest was over an earlier war in Afghanistan — the December 1979 Soviet invasion. The similarities to the Oakland situation include that the protest involved major US ports.

In January, 1980, the International Longshoremen’s Association (ILA) Longshoreman’s Union “announced that its members would not handle any cargo bound to, or coming from, the Soviet Union or carried on Russian ships.” In response, longshoremen up and down the east and gulf coasts refused to service ships carrying Russian cargo.

Technically, this action may not have been a “strike,” but a boycott, as the employees may have continued to work on other cargo, but for simplicity and to emphasize the parallels to the “Occupy” movement’s Oakland port action it is referred to below as a “strike.”

Supreme Court Case on Injunction Against Politically-Motivated Strike

Facts

Two employers affected by this ILA strike sued the ILA, an ILA local, and union officers and agents, alleging that the work stoppage violated their collective-bargaining agreement. They sought to an order compelling arbitration, a temporary restraining order and preliminary injunction against the strike pending arbitration, and damages.

The agreement contained a broad no-strike clause and a provision requiring resolution of all disputes through a grievance procedure ending in arbitration. The no-strike clause provided:

During the term of this Agreement, . . . the Union agrees there shall not be any strike of any kind or degree whatsoever, . . . for any cause whatsoever; such causes including but not limited to, unfair labor practices by the Employer or violation of this Agreement. The right of employees not to cross a bona fide picket line is recognized by the Employer. . . .

Procedural History

The federal district court compelled arbitration and granted a preliminary injunction against the strike. The Fifth Circuit Court of Appeals affirmed the order compelling arbitration of whether the strike violated the no-strike clause. But it reversed on the other point, holding the strike could not be enjoined because the underlying issue was political, and as such was not arbitrable.

In Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Assoc., 457 U.S. 702 (1982), the Supreme Court ruled on the second issue, holding that an injunction pending arbitration could not be ordered.

Applicable Law: Norris-LaGuardia Act and Judicially-Created Exceptions

The Supreme Court’s holding involved application of the following Norris-LaGuardia Act provision:

No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute . . . from doing, whether singly or in concert, any of the following acts:

(a) Ceasing or refusing to perform any work or to remain in any relation of employment [essentially, striking].

A pair of earlier Supreme Court cases had carved out and then limited an exception to this general prohibition of injunctions against strikes in labor disputes:

1. In Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235 (1970), the Supreme Court had held that, to accommodate the anti-injunction provisions of Norris-LaGuardia to subsequently enacted provisions providing federal jurisdiction to enforce collective bargaining agreements, and to the strong federal policy favoring arbitration, “it was essential to recognize an exception to the anti-injunction provisions for cases in which the employer sought to enforce the union’s contractual obligation to arbitrate grievances rather than to strike over them.”
2. Then, in Buffalo Forge Co. v. Steelworkers, 428 U.S. 397 (1976), the Supreme Court held that the Boys Markets exception does not apply when the dispute that precipitated the strike is not arbitrable under the collective-bargaining agreement, even if the question whether the strike violates the no-strike clause is arbitrable.

Thus, following this pair of cases, an injunction against a strike is permissible despite the Norris-LaGuardia Act prohibition if, but only if, the dispute that precipitated the strike is subject to arbitration under the collective bargaining agreement.

Application of Law to the Politically-Motivated Strike Against Soviet Shipments

In the Jacksonville Bulk Terminals case, the employer first argued that Norris-LaGuardia was inapplicable because of the political motives for the strike (protesting Soviet military action, not anything the employer did). The claim was that these motives took the strike outside the Norris-LaGuardia definition of “labor dispute” as “any controversy concerning terms or conditions of employment.”

The Supreme Court disagreed, stating: “The language of the Norris-LaGuardia Act does not except labor disputes having their genesis in political protests.” Then the Court engaged in a lengthy discussion of prcedent and legislative history supporting this conclusion. It ultimately said that even though the dispute between the union and the Soviet Union was not a labor dispute (obviously), the dispute over the lawfulness of the strike was, and this was sufficient to bring the employer’s efforts to obtain an injunction within the prohibition of Norris-LaGuardia.

Then the employer argued the injunction was permissible under Boys Markets, Inc. because the underlying dispute was arbitrable (somewhat inconsistent with the first argument that it was purely political).

The Supreme Court again disagreed, stating: “The underlying dispute, whether viewed as an expression of the Union’s ‘moral outrage’ at Soviet military policy or as an expression of sympathy for the people of Afghanistan, is plainly not arbitrable under the collective-bargaining agreement.”

With Norris-LaGuardia applicable and the Boys Markets, Inc. exception to it inapplicable, the bottom line was that the strike could not be enjoined. This did not mean an arbitrator could not find it violated the no-strike clause, nor did it mean a Court couldn’t award damages for such a violation.

These were tough issues because the strike’s political motivations made it quite different than the typical labor dispute that had been the basis of previous interpretations of US labor law. But US labor law has always posed tough interpretive challenges for the NLRB and the courts as they have attempted to balance the rights of employers and employees.

Supreme Court Case on Damages From Politically-Motivated Strike

The ILA political strike in 1980 protesting the Soviet invasion of Afghanistan yielded another Supreme Court case, International Longshoreman’s Association, AFL-CIO v. Allied International, Inc., 456 U.S. 212 (1982).

Legal Issue

The question in this case was whether the strike was an illegal secondary boycott under § 8(b)(4) of the NLRA, which prohibits a union from inducing employees to refuse to handle goods with the object of forcing any person to cease doing business with any other person.

Such prohibited conduct is considered “secondary” in nature because the employer of the employees in question, which was directly harmed by the strike, was not involved in the dispute that motivated the strike (such uninvolved parties are often described for purposes of secondary boycott analysis as “neutrals”).

This issue had very different contours from the one decided in Jacksonville Bulk Terminals, Inc. because the employer sought damages, not an injunction. In contrast to injunctions in labor disputes, which federal law limits under the Norris LaGuardia Act, damages actions for unlawful secondary boycotts are specifically authorized by federal law.

There were serious damages at stake: the employer was an American company that imported Russian wood products for resale in the U.S., and as a result of the strike its shipments were disrupted completely. Ultimately, it “was forced to renegotiate its Russian contracts, substantially reducing its purchases and jeopardizing its ability to supply its own customers.”

Procedural History

Initially, the federal district court dismissed the case, holding that the strike was not an unlawful secondary boycott.

The Court of Appeals for the First Circuit reversed, finding the strike was a prohibited secondary boycott, despite its political purpose.

After affirmatively resolving the preliminary question of whether the conduct was “in commerce” so as to be within the coverage of the NLRA, the Supreme Court said: “By its terms the statutory prohibition applies to the undisputed facts of this case.” Elaborating, the Court said:

[The ILA's] sole complaint is with the foreign and military policy of the Soviet Union. As understandable and even commendable as the ILA’s ultimate objectives may be, the certain effect of its action is to impose a heavy burden on neutral employers. And it is just such a burden, as well as widening of industrial strife, that the secondary boycott provisions were designed to prevent.

The Court then rejected the argument that the ILA’s action was outside of the secondary boycott prohibition because the impact on neutral employers was not its objective, but merely a side-effect of action intended to “free ILA members from the morally repugnant duty of handling Russian goods.” The Court said:

Such an argument misses the point. Undoubtedly many secondary boycotts have the object of freeing employees from handling goods from an objectionable source. Nonetheless, when a purely secondary boycott “reasonably can be expected to threaten neutral parties with ruin or substantial loss,” … the pressure on secondary parties must be viewed as at least one of the objects of the boycott or the statutory prohibition would be rendered meaningless. The union must take responsibility for the “foreseeable consequences” of its conduct.

Next, the Court rejected the argument that it was “a defense to the application of § 8(b)(4) that the reason for the ILA boycott was not a labor dispute with a primary employer but a political dispute with a foreign nation.” The Court explained:

We would create a large and undefinable exception to the statute if we accepted the argument that “political” boycotts are exempt from the secondary boycott provision. The distinction between labor and political objectives would be difficult to draw in many cases. In the absence of any limiting language in the statute or legislative history, we find no reason to conclude that Congress intended such a potentially expansive exception to a statutory provision purposefully drafted in broadest terms.

We agree with the Court of Appeals that it is “more rather than less objectionable that a national labor union has chosen to marshal against neutral parties the considerable powers derived by its locals and itself under the federal labor laws in aid of a random political objective far removed from what has traditionally been thought to be the realm of legitimate union activity.” … In light of the statutory language and purpose, we decline to create a far-reaching exemption from the statutory provision for “political” secondary boycotts.

Lastly, the Supreme Court rejected the contention that application of § 8(b)(4) would infringe upon the First Amendment rights of the ILA and its members, stating:

We have consistently rejected the claim that secondary picketing by labor unions in violation of § 8(b)(4) is protected activity under the First Amendment. … It would seem even clearer that conduct designed not to communicate but to coerce merits still less consideration under the First Amendment. The labor laws reflect a careful balancing of interests. … There are many ways in which a union and its individual members may express their opposition to Russian foreign policy without infringing upon the rights of others.

Union Involvement in “Occupy” Movement’s Oakland Strike Actions

As discussed above, U.S. labor laws may be relevant to strike-like activities of non-union employees. However, the legal issues multiply dramatically when unions and union-represented employees engage in such activities.

Looking at the Oakland action of November 2, 2011, there is clearly evidence of significant union support and involvement for the “Occupy” movement’s Oakland actions. The unions have generally attempted to avoid the direct ordering of strike or boycott action in order to avoid the implications of the Allied international, Inc. case, which could leave them holding the bag for substantial damages from a port shutdown. It may also be that the “Occupy” movement port shutdown is otherwise distinguishable from the secondary boycott in the Allied case, which leaves more room for union support.

Here is a taste of what Oakland-area unions had to say about the November 2, 2011, “Occupy” movement action, and how they otherwise supported it:

• The Alameda County Labor Council endorsed the Day of Action and encouraged local unions and union members to take part. Many of the union members who joined in the action took unpaid time off work to make their voices heard. Unions also worked with the city government, the Oakland school system and other employers to make leave arrangements. Official union position was: “Individual unions and your members are encouraged to express solidarity in whatever form you find appropriate,” with some non-strike options suggested.
• Service Employees International Union (SEIU) Executive Board “calls on all members of SEIU 1021 to join a day-long ‘Peaceful Day of Action’ in support of Occupy Oakland and against the banking industry and last week’s police brutality against the Occupy Oakland encampment.” SEIU clarifies that despite the “Occupy” movement’s “general strike” terminology, it “is not asking any members to ‘go on strike’ — that would be a violation of many SEIU 1021 contracts,” but is encouraging members “to use legitimate time off to stand in support of Occupy Oakland and join the day’s events.”
• United Auto Workers (UAW) Local 2865 resolution includes: “this union will encourage its members and allies to act in support of Nov. 2 actions and honors as a “Sanctioned Union Strike Line” OccupyOakland and Occupy Wall Street, encourages union members and Local unions to participate in the movement.”
• Berkeley Federation of Teachers (BFT) said “We call upon all BFT members to participate in the November 2nd Day of Action at Occupy Oakland. It is incredibly important that teachers and union members take part in this historic mobilization.” It then used the word “encourage” and explained: “Occupy Oakland has called for a General Strike, as well as a Day of Action, on November 2nd. We have a no strike clause in our contract, so BFT is attempting to reach an agreement with BUSD to allow members to use personal leave, as long as there is adequate sub coverage, to attend ALL Occupy Oakland events on November 2nd.”
• “A festive atmosphere reigned in Oakland’s Civic Center Plaza late Wednesday afternoon as workers from the United Food and Commercial Workers union carried tray after steaming tray of burgers, beans and rice in for a mass feast” for “Occupy” movement supporters.

Implications of 1980 Soviet Boycott Cases for “Occupy” Movement’s Oakland Strike Actions

If all or a large portion of an employer’s union-represented workforce did not report to work in order to participate in the “Occupy” movement Oakland strike actions, the first issue would be whether they acted individually or whether the union could be held responsible. On this issue, most of the unions mentioned above were careful to avoid actually calling a strike, merely “encouraging” participation. (A notable exception is the UAW, with its declaration of a “Sanctioned Union Strike Line.”)

There is a large body of law on the responsibility for union member conduct that would be called on in deciding this issue. More facts would be considered than just the self-serving formal proclamations of union intent.

Even if an employer successfully established union responsibility, under Jacksonville Bulk Terminals, Inc., it appears it would be unable to obtain an injunction forcing employees back to work. The Oakland situation appears similar to the Soviet boycott in that case on the fundamental point that the political issue(s) underlying the strike are not likely to be subject to arbitration under collective bargaining agreements. (However ill-defined the objectives of the “Occupy” movement may be, it seems clear they are political objectives not directed at issues covered by particular employers’ collective bargaining agreements.)

The desire to order employees to return to work would not be a significant issue for most employers if the Oakland strike is a one-time incident, but if it continues or recurs employers might desire such action.

On the other hand, employers could pursue damages claims for violation of no-strike collective bargaining agreement provisions.

Additionally, under the Allied International, Inc., case, some employers might have secondary boycott claims. For example, the “Occupy” movement’s Oakland port shutdown can be viewed as an unlawful secondary boycott relative to companies doing business at the port whose shipping-related operations are affected. Certainly, there is some similarity to the shipping disruptions at the ports resulting from the 1980 protest against the Soviet invasion of Afghanistan.

Here, for several reasons, the application of the law relied upon in Allied International, Inc seems less clear-cut:

1. Due to the relatively non-specific political agenda of the “Occupy” movement, it is difficult or impossible to characterize businesses affected by shipping disruptions as “neutrals.” In Allied International, Inc., it was easy to say that the Soviet Union was the exclusive target of the strike and therefore the affected businesses were “neutrals.” One could say that it appears the “Occupy” movement has mainly been targeting Wall Street and banks, “but the “1% vs. 99%” formulation is much broader.
2. The port was selected as a target, for whatever reason. Given this fact, port-related businesses would seem inherently non-neutral relative to the purpose of the “Occupy” movement action.
3. No specific external person or entity can be identified as the target of the “Occupy” movement, one that would be analogous to the Soviet Union in the Afghanistan strikes.
4. Union involvement in the “Occupy” movement is much more diffuse than ILA involvement in the 1980 Afghanistan protest strike. Not only have most unions been a bit more circumspect than the ILA was, by merely “encouraging” members, but also any damages suffered from the port shutdown will be very difficult to attribute to union members’ action, as opposed to the wide range of the non-union public who presumably joined the port shutdown march.

The bottom line is that there may not be much basis for labor-law based legal action arising from the “Occupy” movement’s Oakland November 2, 2011, “general strike” and port shutdown. But, as always, each case must be decided on its facts, and employers or employees feeling the need for legal redress — and their counsel — will have plenty to contemplate!

Photo from Occupy Wall Street protest by David Shankbone via flickr